1. This is an appeal against an appellate decree of Additional District Judge, Hoshiarpur, dated the 8th July 1948, dismissing the appeal of the plaintiffs and affirming the decree of the trial Court.
2. The relationship of the parties will be clear from the pedigree table which is as follows:
| | | | |
Narain Sultani Govind Bhola Wazir
| | | | |
-------------- Mst. Sangru Gurditta Buta ----------------
| | (D.C) | (died) | |
Kanna Hira Beli Dayal Jhesi
| | (Defdt.2) | |
| Harjallu | Nandu
| | | | |
Sarno Rooldu Lachhman Sundar Ganga Pltiff.
Pltff. Rulic Ptff. 3. On the 23rd April 1946, by a registered deed of adoption, Beli defendant No. 2 adopted his daughter's son Tilak Chand. Beli possesses some occupancy land and sonic houses. On the 18th June 1947. a suit was brought by the collaterals, Rulia and others, challenging the adoption on the ground that the parties were governed by custom and daughter's son could not be adopted. The defence was that they were not governed by custom, that the land in dispute was not held by the common ancestor and that the adoption was under the Hindu Law as modified by custom. Both Courts have given concurrent findings that, (1) the land had not been proved to have been held by the common ancestor Uttam and there was no proof to show that the houses were ancestral property, (2) the adoption was a formal adoption in the Dattka form, (3) according to Hindu Law, as modified in the Punjab, even among twice-born castes the adoption of a daughter's son is not prohibited, (4) the Brahmans of Gondpur were consulted at the time of settlement and preparation of the Riwaj-i-am and on the evidence which had been led it was clear that they were governed by custom in matters of succession and alienation and (5) by custom the adoption of a daughter's son was valid in this district.
4. The plaintiffs in appeal have submitted in the first instance that the land is ancestral in the sense that it was held by Uttam, the common ancestor. The revenue records show that the occupancy rights are under Section 6 of the Punjab Tenancy Act. In 1868 the land was held by the grandsons of the common ancestor Uttam in equal shares, but the land could not be traced back to St. 1908. i.e., 1851-52. From this the learned Judges of the Courts below refused to draw the inference that the land was held by Uttam. Mr. Grover, however, submits that in 1879 when Buta died the land was divided amongst the rest of the brothers of their descendants and similarly when Mst. Sangru died in 1891 the remaining three branches inherited her estate. But this is negatived by the circumstances that in 1851 Sultani is held to have been occupancy tenant of some area of land which was quite different from that which is now in dispute. As the khasra Nos. have not been traced back to Uttam or even to the sons of Uttam in the year 1851-52 no presumption can be raised that the land was held by Uttam. It must therefore be held that the land in dispute is non-ancestral, and as there is no proof in regard to the house property, I must hold that the houses also are non-ancestral property.
5. It was next submitted by Mr. Grover that the parties are governed by custom and if they are so governed, the adoption of Tilak Chand is invalid because under the Customary Law daughter's sons cannot be adopted in this district and therefore whether Hindu Law allows such adoptions or not in this particular case the adoption cannot be upheld. I am unable to agree with this submission either. It is true that the parties have been held to be governed by custom in matters of succession and alienation but that is not the point which is in dispute in the present case. Parties are Brahmans which is the highest Caste among the Hindus. In 'Ishar Das v. Bhagwan Das', 17 Lah 612, which was a case of Phillaur in the district of Jullundur it was held by a Division Bench of the Lahore High Court that in the case of Brahmins the initial presumption is in favour of personal law, which those asserting custom have to disprove. The same rule was laid down in 'Anant Ram v. Ram Rattan' 5 Lah 547. Therefore, in my opinion, it was for the plaintiffs to prove that in matters of adoption a person belonging to a High caste, like Brahamans, of Hoshiarpur were governed by custom, and what, that custom was. In other words, it was for the plaintiffs to show that according to custom the daughter's sons could not be adopted.
6. Even if the parties are governed by custom in regard to adoptions, according to the Riwaj-i-am of Hoshiarpur District tribes other than Rajputs of Tahsil Garhshankar, Gujars of Tahsil Hoshiarpur and Tahsil Garhshankar, Pathans, Dogras, Syeds and Sheiks have the power of making adoptions. This is clear from Question No. 61 of the Riwaj-i-am of Hoshiarpur District. In support of the custom of adoption of daughter's sons there are several instances given at pp. 181 to 183. In Rattigan's Digest of Customary Law are given instances of adoption of daughter's sons in Hoshiarpur. They are 'Ram Ditta v. Phula Singh', 59 Pun Re 1874; 'Natha Singh v. Sujan Singh', 34 Pun Re 1899; 'Jalal v. Mazhar Ali', 13 Pun Re 1893; 'Sanaman v. Ala Bakhsh', 106 Pun Re 1901; 'Bishna v. Banta', 69 Pun Re 1905; and (Achhar Singh v. Mehtab Singh', 81 Pun Re 1907 and there are two instances against this and they are 'Nathu v. Rahman', 44 Pun Re 1911; and 'Bur Singh v. Dalip Singh', 76 Ind Cas 256. But the latter was an instance of adoption of a son's daughter's son. It was then submitted that according to the Riwaj-i-am of the Tahsil a daughter's son could not be adopted. In the first place, I am unable to read the Riwaj-i-am as counsel would like me to and secondly even if that was so, the Riwaj-i-am of the district is supported by a large number of valuable instances, and as was laid down by Abdul Rashid, J., in 'Inder v. Mukhtar', ILR (1945) Lah 343 (FB) at p. 346,' the Riwaj-i-am of the district in the circumstances of this case is of greater value than the Riwaj-i-am of the Tahsil and I am therefore of the opinion that a daughter's son can be adopted under custom.
7. In 'Gokal Chand v. Milkhi', 65 Pun Re 1916, a case of Hoshiarpur Brahmans, Shadi Lal, J., as he then was, held that amongst agricultural Brahmans a formal adoption was allowed and the same was held in 'Waryaman v. Kanshi Ram', 3 Lah 17.
8. The parties are Brahmans, and even if they are governed by custom, no reason has been suggested why they cannot adopt in Dattka form. I give no opinion on the point whether tribes amongst whom, according to custom, adoption is wholly prohibited, Hindu Law adoption in the Dattka form would be allowed or not But this is not one of those cases. As I have said before, even if the parties are governed by custom, the custom of adoption prevails and daughter's son can be adopted. Therefore, there is no conflict between Hindu Law and Custom on the question of capacity to adopt or to be adopted and therefore, in my opinion, Beli could adopt Tilak Chand in Dattka form.
9. It was then contended that according to Hindu Law a daughter's son cannot be adopted because an adopted son has to be an image of a real son and nobody could be adopted whose mother the adopter could not marry. But this rule does not apply to the Punjab. In 'Raghbir Saran v. Ram Chander'. 32 Pun L R 482 at p. 489, it was held by a Division Bench of the Lahore High Court that custom has varied the Mitakshara law in the Punjab only to the extent of allowing the adoption of a daughter's son but once that has taken place the position of such a son is analogous to that of a son adopted in the Dattaka form. There reliance was placed on three judgments (1) 'Parmanand v. Shiv Charan Das', 2 Lah 69, a case of Khatris of Amritsar, where it was held that on his adoption such a son becomes the coparcener of his father, (2) 'Kirpa Ram v. Rabi Datt', 5 Lah 134, a case of Rohtak Brahmans and (3) 'Lala Rup Narain v. Gopal Devi', 36 Ind App 103 (PC), where at p. 110 Sir Arthur Wilson in connection with such adoptions observed:
'The general rule of Hindu Law cannot be disputed, but it may be varied by family custom, and often is so varied in the province from which this appeal comes.'
Relying on these authorities, I hold that amongst the parties adoption must be taken to be a formal one with all the incidents that follow from such adoptions, deviations from strict Hindu Law being allowed in matters of formalities and restrictions of relationship, etc., which are more of Brahmanical innovations.
10. In the result, the appeal fails and is dismissed and the decree of the Courts below affirmed. The respondents will have, their costs in this Court and in the Courts below.